I don't understand why the city refused to return the property he appeared to possess legally and which it appears was taken as evidence in arrest that led to no prosecution. Sounds like the city should give the gun back. But that doesn't mean that this guy has a Second Amendment claim. This sounds like a due process and/or takings claim. Too bad the blog posting doesn't have enough info to fully understand the issue.

4:59 pm March 15, 2012

Less Confused wrote:

I broke down and read the opinion. It's short and meanders, but the bottom line is: "In Louisiana, on the other
hand, the owner of a seized firearm may request its return simply by filing a contradictory motion in the criminal proceeding. La. Rev. Stat. § 15:41(C)." So, the guy could get his firearm back if he filed the proper motion, which he never did. http://www.ca5.uscourts.gov/opinions/pub/11/11-30198-CV0.wpd.pdf

Bigger question: Why is this case in the daily writing sample?

8:33 pm March 15, 2012

Borogoves wrote:

If the government is permitted to confiscate arms without legal right, as the 5th Circuit appears to conclude, then the right to keep and bear arms becomes meaningless. I hope there is an appeal.

1:25 pm March 16, 2012

RedRider 07 wrote:

Less Confused, must be a lawyer. How is the common man to know about these Motions and opinion's. They take a guys property for no reason they should give it back.

1:55 pm March 16, 2012

NYC Maritime Attorney wrote:

Why is it that any person whose property was seized must commence an action to recover their property when the government admits the purpose of the seizure is no longer valid? Yes, at the time of seizure the prosecution alleged probable cause as a basis for seizing the weapon. But once the authorities dropped their case, they no longer had a valid legal basis, probable cause, for the initial seizure. Put another way, the seizure went from being lawful to wrongful at the moment the authorities chose not to prosecute the gun owner because such a failure to prosecute is an admission that the authorities didn't have the probable cause on which they relied to seize the weapon in the first place. Hence, the authorities should return said property, whether it's a gun, car, house, vessel/boat, whatever, without the injured party having to undertake legal action to restore the status quo ante that existed before the seizure. I'm sure that many criminal prosecutors will disagree but probable cause does not exist at one moment in time during a case, then magically not exist after an arrest is made. You either have probable cause or you don't. Once the authorities can no longer assert and prove probable cause, then all actions arising from an earlier claim of probable cause are null and void.

2:02 pm March 16, 2012

Rich7553 wrote:

It seems to me that Mr. Houston's attorney pulled a bonehead move. The seizure of personal property by the government is a 4th Amendment issue, not a 2nd Amendment issue just because the property happened to be a firearm.

2:54 pm March 16, 2012

Dan Peterson wrote:

The National Rifle Association, represented by Stephen Halbrook and myself, filed a “friend of the court” brief in support of Mr. Houston in this case. Important points to be noted include:
1. Mr. Houston was arrested, but charges were dropped years ago. The gun was legally owned by him.
2. There has never been any claim by the City of New Orleans that Mr. Houston’s gun is actually needed as evidence.
3. Mr. Houston repeatedly requested return of his firearm, but that request was repeatedly denied by the City.
4. It is unclear, at best, that the statute cited by the court to allow return of the firearm applied. In fact, on its face it appeared that it did not apply.
5. Under relevant court decisions, it is the duty of the City to notify the person whose property has been seized of the procedures for getting it back. The City did not do this.
6. For reasons stated by Judge Elrod, it is an error to contend that the government may violate a fundamental constitutional right, such as the Second Amendment, by claiming that the right can be exercised under other circumstances.
7. The Second Amendment protects not only a right to bear arms for self-defense, but the right to “keep” arms. Confiscating Mr. Houston’s firearm, and refusing to return it, violates his constitutional right to “keep” or possess that firearm. A definition of “keep” from the early period of the American republic stated that “keep” means, “To hold; to retain in one’s power or possession; not to lose or part with….”
8. We are informed that Mr. Houston is considering his further legal remedies.

4:16 pm March 16, 2012

NYC Maritime Attorney wrote:

@ Dan Peterson. I'm glad to read that someone is supporting Mr. Houston and hopefully you will succed. That said, however, the best course of action to retrieve his property seems to be attacking the city's violation of Mr. Houston's Fifth and Fourteenth Amendment due process rights. They seized his property at the time of his arrest, then acknowledged that the arrest and seizure were without, or at least no longer had, the proper legal basis for such arrest and seizure. After all, by their own admission the arrest of Mr. Houston and seizure of the firearm were for the sole purpose of prosecuting him for alleged crimes. When the city refused to prosecute him for those crimes, they ipso facto and legally admitted there was not evidence enough to go forward with a prosecution. The same probable cause standards/requirements for seizing property in a criminal proceeding I believe also apply to arrest of persons. Since he was arrested and then freed for lack of evidence to prosecute him, there was clearly no longer a basis of probable cause for his arrest and detention. It seems to me that New Orleans therefore cannot continue to deprive him of his lawfully obtained and owned property (assuming that is the case here) that was seized as part of that arrest. The clear textual meaning of the Amendments as I read them, as well as case law on procedural due process, appears to put the burden on the city of New Orleans to show why it may keep his property when it has admitted there is no longer a basis for prosecuting him for any crime related to the gun. I wish you and your team the best of luck in advocating for Mr. Houston's cause.

2:57 am March 19, 2012

E. Zach Lee-Wright wrote:

Obviously, in the opinion of the court Mr. Houston and his attorney used the wrong second amendment solution. Better luck next time.

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